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Stoke-on-Trent City Council (18 012 345)

Category : Adult care services > Charging

Decision : Upheld

Decision date : 27 Mar 2019

The Ombudsman's final decision:

Summary: The Council acknowledged failings in the home care provided to Mr Y before the complaint came to the Ombudsman. However, it failed to provide an adequate remedy. We have made recommendations to address this.

The complaint

  1. Mr X complains about the quality of domiciliary care previously provided to his father, Mr Y. Mr X is also concerned about the amount of client contribution Mr Y paid towards the care.

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The Ombudsman’s role and powers

  1. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
  2. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

  1. I have:
  • considered the complaint and discussed it with Mr X;
  • considered the correspondence between Mr X and the Council, including the Council’s response to the complaint;
  • made enquiries of the Council and considered the responses;
  • taken account of relevant legislation;
  • offered Mr X and the Council an opportunity to comment on a draft of this statement, and considered the comments made.

Relevant legislation

  1. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 applies to care providers. The Care Quality Commission (CQC) monitors, inspects and regulates adult care services providers to ensure they meet fundamental standards of quality and safety.
  2. Under the Care Act 2014, councils have a duty to assess individuals in their area who may be in need of care and support, and to provide suitable services to meet their identified needs. The specific services required are set out in a support plan.
  3. A council may contract out these services to a private provider where appropriate, but will retain its responsibility for meeting the individual’s care and support needs
  4. This document sets out Guidance on how councils meet the terms of the Care Act 2014. It says councils can charge for care and support, except where they are required to provide it free of charge, (set out in Section 14 of the Act).
  5. The Guidance says a person should not have to pay for care and support out of their capital if they have less than £14,250. It also says councils should disregard any DLA mobility component a person receives when assessing their income.
  6. There are certain items of expenditure that can be deducted from a person’s income before the council decide whether a person can afford to contribute to your social care costs called Disability Related Expenditure, or DRE.Councils must take DRE into account when assessing a person’s finances. The financial assessment should set out exactly what the Council considers to be DRE.
  7. If a Council takes a disability benefit into account, they must also assess disability-related expenditure in a financial assessment. This is to meet any disability-related needs not being met by them.
  8. Examples of acceptable disability related costs include:
  • extra washing or special washing powder and conditioner for delicate skin
  • special diet
  • special clothing or footwear (or extra wear and tear)
  • additional bedding
  • extra heating costs
  • internet access
  • any care that social services do not meet
  • buying and maintaining disability-related equipment
  • any transport costs (both for essential visits to the doctor or hospital, but also to keep up social contacts).
  1. After paying the assessed charge, a person’s weekly income should not reduce below a minimum income level, called the Minimum Income Guarantee (MIG). Councils must consider how to protect a person’s weekly income using the MIG. Guidance states the purpose of the MIG is to promote independence and social inclusion and ensure a person has have sufficient funds to meet basic needs.

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What I found

  1. Mr Y received care commissioned by the Council from MSC Homecare. He needs support with all daily living tasks and received four visits a day. Mr X says carers turned up at the wrong times, and sometimes not at all, often carers did not stay for the full duration of the visit. Mr X ended the care because it was unreliable and causing his parents unnecessary stress. Mr X gave up his paid employment to care for Mr Y.

Mr X complained to the Council in August 2018. He said he did not believe he should pay the final invoice due in November 2018, “and for all the other few month where the full bill has been paid”. Mr X withheld payment for invoices from August 2018 onwards.

  1. The Council responded to Mr X’s complaint on 31 October 2018. The author said he had “obtained the care notes and Electronic Call Monitoring data for the period covering the 26 February 2018 to 15 August 2018. Electronic Call Monitoring is where the carers have to log in and out of the property on entry/leaving your father’s call, and by using this data I was able to analyse their punctuality against what time they should have arrived. I also obtained your father’s care notes to establish what times the carers had recorded in writing. From this analysis, I did evidence that calls had been both too early and too late compared to the time they should arrive, and that some calls were under delivered in terms of their durations. Based on the above evidence of unpunctual care calls, and carers not always staying for the required call durations, I can uphold this element of your complaint”.
  2. The author went onto say the final month’s invoice (November 2018) of £611.52 would be waived “in recognition of the unpunctual calls and unsatisfactory service”.
  3. Mr X believes the Council should have waived invoices from August, September & October 2018.
  4. Mr X is also concerned with the amount of client contribution Mr Y paid towards his care. He says the Council delayed in informing Mr Y of the amount of client contribution due, consequently Mr Y accrued a debt. The Council agreed a repayment plan of £200 monthly. Mr X says Mr Y’s assessed contribution without the debt was around £600 monthly. He says both his parents receive state benefits, and his father receives a private pension.
  5. The records show the Council told Mr Y he would be required to pay a contribution towards his care. At the time, he decided not to accept the care. However, he later changed his mind. In June 2017, the records show a social worker told Mr Y again that the care would be chargeable. Mr Y’s care commenced on 20 June 2017. There was a delay in the Council informing Mr Y of the amount of contribution he should pay. Mr X alerted a social worker about this during a visit in July 2017, and the social worker subsequently contacted the Council’s finance team. Mr Y was informed of the charge in July 2017.
  6. The Council apologised to Mr Y for the delay and wrote off the charges for the period 20 June 2017 to 31 July 2017. However, Mr X disputed the client contribution and withheld payment whilst the Council investigated his complaint. The outcome concluded the charge was correct. By this point Mr Y had accrued a substantial debt. The Council agreed a repayment plan. The debt was cleared in December 2018.
  7. I have seen copies of financial assessments the Council completed in 2017 and 2018. In 2017 the weekly assessed charge was £112.65 per week, and £137.88 per week in 2018.

Analysis

  1. When local authorities commission care services for a person they remain liable for the service failures of the service provider. So even though Mr X complains about the care agency for the most part the Council is vicariously liable for the faults of the care agency.
  2. The Council upheld Mr X’s complaint about poor care. The facts are established. There is nothing the Ombudsman can add to this. The crux of Mr X’s complaint is about the remedy the Council offered in acknowledgment of the poor care received.
  3. When Mr X made his complaint to the Council he set out the remedy he was seeking, he asked for the final month’s invoice (November 2018) be waived, and other months where the care was unsatisfactory, although he did not state which months he was referring to, it is clear he meant the months between August 2018 and November 2018. The Council accepts the service Mr Y received was below an acceptable standard between these months. Consequently, Mr X had to step in and provide care for Mr Y, this resulted in Mr Y giving up his employment. Mr Y paid for a service he did not receive. The Council should waive the outstanding invoices for August, September and October 2018.
  4. I find no fault in the financial assessments the Council completed in 2017 and 2018.
  5. The Council acknowledged it delayed in informing Mr Y about the amount of client contribution towards his care. It apologised and wrote off the backdated invoice for contributions between 20 June 2017 & 31 July 2017 (£665.90). The remaining debt accrued because Mr X withheld payment as he disagreed with the charges. The charges were correct and there was no fault by the Council in seeking repayment of the debt.
  6. To summarise, the Council acknowledged there were failings in the home care provided to Mr Y before the complaint came to the Ombudsman. However, it failed to provide an adequate remedy, in that it did not waive invoices for all the months the care was known to be unsatisfactory.

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Agreed action:

  1. The Council should within four weeks:
  • waive outstanding invoices for August, September & October 2018;
  • pay Mr X £250 for his time and trouble pursuing the complaint with the Council and the Ombudsman.

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Final decision

  1. There is evidence of fault in this complaint in that the Council failed to provide an adequate remedy for the acknowledged failings in care provided to Mr Y.
  2. It is on this basis; the complaint will be closed.

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Investigator's decision on behalf of the Ombudsman

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